What is lawful basis?

Overview

Lawful Basis simply put, is the legal permission (basis) you have for processing (obtaining, recording, storing, updating or sharing) personal information for the reasons (purposes) you declare in your privacy information.

The GDPR provides 6 legal bases for processing personal data. Any processing activities in your organisation must fall within at least one of these legal bases.

Your obligations, as well as individuals rights regarding their personal information data, can vary significantly depending on the assigned legal basis. Because of this, it is important to map out your legal basis at a granular level to be clear what legal obligations each personal data category has.

The 6 legal bases are:

Contract - mainly for the purpose of delivering contracted services

Legitimate Intrest - assigned to low-risk and expected processing such a replying to an enquiry

Consent - for any processing outside the direct scope of your services such as marketing

Legal obligation - when you process personal information to comply with a common law or statutory obligation.

Vital interest - when you need to process personal information to protect someone’s life.

Public interest - when you need to process personal data 'in the exercise of official authority’.

Example

You may need to store customers contact information in order to fulfil an order or contract, This could be deemed as processing under the legal basis of contract.

The customer refers a friend to you who enquires about your services, requesting a quote. Here you could process their information under the legal basis of legitimate interest.

You want to offer a special discount to promote your services to your existing customers. However 'promoting your services' is not what your customers shared their information with you for when acquiring your services. This means you will need to process their information under the leag basis of consent (granted permission), which will require them to grant you express permission to do so.

Here is an example of how you might assign legal basis across your organisation:

What the regulator says

You must have a valid lawful basis in order to process personal data.

There are six available lawful bases for processing. No single basis is ’better’ or more important than the others – which basis is most appropriate to use will depend on your purpose and relationship with the individual.

Most lawful bases require that processing is ‘necessary’ for a specific purpose. If you can reasonably achieve the same purpose without the processing, you won’t have a lawful basis.

You must determine your lawful basis before you begin processing, and you should document it. The ICO have an interactive tool to help you.

Take care to get it right first time - you should not swap to a different lawful basis at a later date without good reason. In particular, you cannot usually swap from consent to a different basis.

Your privacy notice should include your lawful basis for processing as well as the purposes of the processing.

If your purposes change, you may be able to continue processing under the original lawful basis if your new purpose is compatible with your initial purpose (unless your original lawful basis was consent).

If you are processing special category data you need to identify both a lawful basis for general processing and an additional condition for processing this type of data.

If you are processing criminal conviction data or data about offences you need to identify both a lawful basis for general processing and an additional condition for processing this type of data.